Kaline v. Davidson

• Decision Date: 21 June 1924
• Docket Number: 39.
• Citation: 126 A. 68,146 Md. 220
• Parties: KALINE v. DAVIDSON.
• Court: Maryland Court of Appeals

126 A. 68

146 Md. 220

KALINE v. DAVIDSON.

No. 39.

Court of Appeals of Maryland

June 21, 1924

Appeal from Baltimore City Court; H. Arthur Stump, Judge.

"To be officially reported."

Action by Anna C. Kaline against Jessica Davidson, sometimes called Mrs. H. Bradley Davidson, Jr. From judgment for defendant plaintiff appeals. Reversed and remanded for a new trial.

Argued before PATTISON, URNER, ADKINS, OFFUTT, DIGGES, and BOND, JJ.

Michael James Manley and Charles F. Harley, both of Baltimore, for appellant.

Walter L. Clark, of Baltimore (Bowie & Clark, of Baltimore, on the brief), for appellee.

BOND J.

This suit is one for the recovery of damages for personal injuries sustained in a collision of two automobiles which approached each other from opposite directions and came together on Charles Street avenue at about the boundary line between Baltimore city and Baltimore county. The plaintiff, now the appellant, was riding as a guest in the car of Sweetser Linthicum, which the owner was driving north. Mrs. Davidson was driving south. The collision occurred on the west side of the roadway, which was, of course, on Mrs. Davidson's right-hand side and Mr. Linthicum's left-hand side. The verdict of the jury and the judgment were for the defendant. On the appeal the court is asked to consider only exceptions on behalf of the plaintiff, or appellant, to the granting of the defendant's second, fifth, sixth, and sixth and one-half prayers for instructions to the jury.

The appellant and the witnesses on her behalf testified, in effect, that, as the two cars approached each other, Mrs Davidson's car swerved or zigzagged somewhat, and then ran over to its left, on Mr. Linthicum's side of the road, pressing him over to his right as far as possible until at the last moment Mr. Linthicum was forced to make a sharp turn over to his left; that at the same moment, however, Mrs. Davidson turned over to her right, that is, in the same direction, so that the two cars ran together to the west side of the road, and collided so as to cause the injuries complained of. On behalf of Mrs. Davidson the testimony was to the effect that, as she drove down the middle of the road, a few inches, perhaps, to the right of the center, Mr. Linthicum, coming on his own right-hand side, turned a little toward her as if to make her yield the middle of the road; that she did yield, but that Mr. Linthicum's car kept coming toward her right, forcing her to run further over in the same direction, and that thus the cars ran together on the west side of the road.

Two prayers for instructions offered by the plaintiff, and both granted, set out the general principles of primary negligence and contributory negligence, without particular application to details of the movements of the two cars. The defendant's first prayer, also granted, was likewise of a general nature. By the granting of the second prayer the jury were instructed that, if they should find that the collision "was due to an unavoidable accident unmixed with negligence on the part of either the said Jessica Davidson or the plaintiff, then the verdict of the jury shall be for the defendants." And to this the appellant filed a special exception, and objected that the evidence all tended strongly to prove negligence on the one side or the other, and that there was no evidence to prove that the collision was unmixed with negligence and unavoidable, which is the hypothesis of this prayer. The jury, of course, were not bound by the conclusions and theories contended for by the parties; juries are always at liberty to reject these and come to a conclusion that the accident was unavoidable, if on any of the facts and inferences from them, pieced together, such a conclusion is at all reasonably possible. And here, after a review of the evidence, we cannot say that it excludes all possibility of a theory of unavoidable accident, or one free from negligence. Therefore we do not find error in the ruling on this prayer.

Upon the defendant's fifth prayer the jury were instructed on the rule of the road that vehicles upon meeting others shall turn to the right of the center so as to pass without interference, and, in addition, were instructed that, if they should "believe from all of the evidence in this case that the automobile in which the plaintiff was riding turned to the left of the center of the highway and collided with the automobile driven by the defendant, Jessica Davidson, at or near the hedge on the west side of Charles Street avenue then the verdict of the jury shall be for the defendants, unless they shall...